MacFarlane v. McKean, Esq.

• Court: District Court, D. New Hampshire
• Decided: January 16, 1996
• Docket: CV-92-614-SD
• Status: Published

Opinion

MacFarlane v. McKean, Esq. CV-92-614-SD 01/16/96 UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

James MacFarlane

v. Civil No. 92-614-SD

Edgar D. McKean III, et al

O R D E R

This order addresses the balance of the issues raised in

certain currently pending motions (in addition to a flurry of

materials in supplementation) and not disposed of by this court's

prior order of July 10, 1995.1

1. Summary Judgment Standard

Summary judgment shall be ordered when "there is no genuine

issue as to any material fact and . . . the moving party is

entitled to a judgment as a matter of law." Rule 56(c), Fed. R.

Civ. P. Since the purpose of summary judgment is issue finding,

not issue determination, the court's function at this stage "'is

1In said order, the court, inter alia, (1) converted defendants' motion to dismiss (document 51) into a motion for summary judgment; (2) ruled that plaintiff would be required to support his legal malpractice claims with expert testimony; and (3) granted plaintiff additional time to identify and locate such an expert. not [] to weigh the evidence and determine the truth of the

matter but to determine whether there is a genuine issue for

trial.'" Stone & Michaud Ins., Inc. v. Bank Five for Savings,

785 F. Supp. 1065, 1068 (D.N.H. 1992) (guoting Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). Although

"motions for summary judgment must be decided on the record as it

stands, not on litigants' visions of what the facts might some

day reveal," Maldonado-Denis v. Castillo-Rodriquez, 23 F.3d 576,

581 (1st Cir. 1994), the entire record will be scrutinized in the

light most favorable to the nonmovant, with all reasonable

inferences indulged in that party's favor. Smith v. Stratus

Computer, Inc., 40 F.3d 11, 12 (1st Cir. 1994), cert, denied, ___

U.S. ___ , 115 S. C t . 1958 (1995); see also Woods v. Friction

Materials, Inc., 30 F.3d 255, 259 (1st Cir. 1994); Maldonado-

Denis , supra, 23 F.3d at 581.

"In general . . . a party seeking summary judgment [is

reguired to] make a preliminary showing that no genuine issue of

material fact exists." National Amusements, Inc. v. Town of

Dedham, 43 F.3d 731, 735 (1st Cir.) (citing Celotex Corp. v.

Catrett, 477 U.S. 317, 324 (1986)), cert, denied, ___ U.S. ,

115 S. C t . 2247 (1995) .

A "genuine" issue is one that properly can be resolved only by a finder of fact because it may reasonably be resolved in favor of either party. Maldonado-Denis, 23 F.3d at 581. In

2 other words, a genuine issue exists "if there is 'sufficient evidence supporting the claimed factual dispute' to reguire a choice between 'the parties' differing versions of the truth at trial.'" I d . (guoting Garside [v. Osco Drug, Inc.,1 895 F.2d [46,] 48 [1st Cir. 1990)]. A "material" issue is one that might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Libertad v. Welch, 53 F.3d 428, 435 (1st Cir. 1995).

"'The evidence illustrating the factual controversy cannot

be conjectural or problematic; it must have substance in the

sense that it limns differing versions of the truth which a

factfinder must resolve . . . .'" National Amusements, supra, 43

F.3d at 735 (guoting Mack v. Great Atl. & Pac. Tea Co., 871 F.2d

179, 181 (1st Cir. 1989)). Accordingly, "purely conclusory

allegations, . . . rank speculation, or . . . improbable

inferences" may be properly discredited by the court, i d . (citing

Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st

Cir. 1990)), and "'are insufficient to raise a genuine issue of

material fact,'" Horta v. Sullivan, 4 F.3d 2, 8 (1st Cir. 1993)

(guoting August v. Offices Unlimited, Inc., 981 F.2d 576, 580

(1st Cir. 1992)).

2. Defendants' Motion for Summary Judgment (document 51)

Bifurcating plaintiff's legal malpractice allegations,

defendants assert an entitlement to summary judgment on the

3 negligent misconduct claims (Counts I-V) due to lack of expert

testimony and a finding in their favor on the intentional

misconduct/fraud claims (Counts VI-VIII) for failure to plead

with particularity.

a. Allegations of Negligent Misconduct

The sole basis for defendants' summary judgment motion as to

Counts I-V is that plaintiff, when the motion was originally

filed, had not disclosed an expert. "Without expert testimony to

establish that the Defendants' representation did not comport

with the professional standard of conduct reguired of attorneys,

the Plaintiff's claim of negligence/malpractice must be dismissed

as a matter of law." Defendants' Motion for Summary Judgment 5

7. Plaintiff initially disputed the need for such expert

testimony, but, pursuant to particular leave of the court,

obtained same.2

As this court earlier ruled.

The New Hampshire Supreme Court has not yet addressed the issue as to whether expert testimony is reguired in an action for legal malpractice. This court is satisfied, however, that the better rule, which will be adopted in New Hampshire, is that such expert testimony is reguired unless the legal

2Whether plaintiff timely disclosed his experts and who will be permitted to testify at trial will be discussed in part 3 infra.

4 malpractice alleged is so obvious that lay jurors could rely on their own knowledge to decide the issue.

Order of July 10, 1995, at 2-3 (citing Jim Mitchell & Jed Davis,

P.A. v. Jackson, 627 A.2d 1014 (Me. 1993), cert, denied, ___ U.S.

, 114 S. C t . 903 (1994), and Pongonis v. Saab, 486 N.E.2d 28

(Mass. 1985)); see also Focus Inv. Assocs., Inc. v. American

Title Ins. C o ., 992 F.2d 1231, 1239 (1st Cir. 1993) (noting and

adopting "the most widely accepted rule . . . that a legal

malpractice plaintiff must present expert testimony establishing

the appropriate standard of care unless the attorney's lack of

care and skill is so obvious that the trier of fact can resolve

the issue as a matter of common knowledge").

Plaintiff disclosed his expert and her opinion in a

Supplementary Objection filed with the court on August 14, 1995.

See August 10, 1995, Written Report of Roberta A. Harding, Esg.

(attached to Plaintiff's Supplementary Objection). After

reviewing the evidence in this matter and indicating alleged

deficiencies in the representation plaintiff received during his

divorce proceedings. Attorney Harding concludes, "In my opinion,

based upon, reviewing the Coos County Superior Court Docket No.

86-M-174 and your complaint in this case your complaint states a

valid claim for legal malpractice against Atty Edgar D. McKean,

III and Atty Julia Nye." August 10, 1995, Harding Report at 4.

5 By virtue of such expert testimony, plaintiff has

sufficiently deflected defendants' summary judgment argument. As

such, the court is unable to conclude that no reasonable juror

could find in plaintiff's favor on the negligent misconduct

claims. Accordingly, defendants' motion for summary judgment as

to Counts I-V must be and herewith is denied.

b. Allegations of Intentional Misconduct/Fraud

Citing to Rule 9(b), Fed. R. Civ. P.,3 defendants assert

that since plaintiff "has no specific evidence" to support his

claims, "the allegations not only should now be dismissed but

should never have been made in the first place." Defendants'

Memorandum of Law at 4-5.4

Rule 9(b) seeks to achieve three general purposes:

First, particularity serves to put the defendant on notice so that a meaningful response may be prepared. Second, it is intended to prevent the use of a groundless claim as a pretext to uncovering a wrong

3Said provision of the Rule allows, "In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally."

4"Since Fed. R. Civ. P. 9(b) is a special pleading reguirement, it governs the procedure in federal courts in all diversity suits. State law, however, governs the burden of proving fraud at trial." Simcox v. San Juan Shipyard, Inc., 754 F.2d 430, 439 n.9 (1st Cir. 1985) (citation omitted).

6 which was done. Finally, the requirement is intended to protect defendants from frivolous suits which could damage their reputations.

Republic Envtl. Svs., (PA), Inc. v. Reichhold Chems., Inc., 154

F.R.D. 130, 131-32 (E.D. Pa. 1994) (citation omitted); see also

Killian v. McCulloch, 850 F. Supp. 1239, 1254 (E.D. Pa. 1994)

("The rule's purpose is to give notice to the defendant of the

precise misconduct with which she is charged, and to protect her

from any spurious charges of fraudulent or immoral behavior.")

(citation omitted).

Two First Circuit principles apply to the present inquiry.

First, the Circuit has stated that "Rule 9 must be read in

conjunction with Rule 8 which provides that . . . 'all pleadings

shall be construed so as to do substantial justice.'" Simcox,

supra note 4, 754 F.2d at 440 (quoting Rule 8(f), Fed. R. Civ.

P.). Second, plaintiff's pro se status all but requires the

court to hold his complaint to a "less stringent" standard than

pleadings drafted by attorneys. See Eveland v. Director of CIA,

843 F.2d 46, 49 (1st Cir. 1988) (per curiam) (citing Haines v.

Kerner, 404 U.S. 519, 520 (1972) (per curiam)). "As long as

there is some precision and some measure of substantiation in the

pleadings, [Rule 9(b)] will be satisfied." Killian, supra, 850

F. Supp. at 1254.

7 When questioned on the issue during his deposition, the

following colloquy took place.

Q ......... Now, in paragraph 9, you allege that "Jack Crisp perpetrated a deliberate fraud against the Courts of New Hampshire in collusion and in conspiracy with defendants to predetermine the outcome of the State proceedings so that all of the attorneys could corruptly recover substantial and unjustified legal fees so as to affect the issuance of the aforesaid State judgment of $67,200 at a minimum." Is that correct? A. That is what it reads, yes. Q. Would you please describe for me the basis of that allegation? A. The basis of that allegation is a pattern, a pattern by Ted McKean where that he placed me, due to his negligence and lack of duty and care, he placed me in a situation to where that he--you might as well say he put me on Jack Crisp's platter, and that Jack Crisp did a hatchet job on me. He did this because of the fact he did not protect any of my property. He gave me very, very bad advice, and as a result of all of this, it is obvious that my pie was put out there so that Jack Crisp could share in it. I was a sucker with the money in the program, and that's exactly the way I was treated. Q. This particular paragraph alleges that --refers to Jack Crisp perpetrating a deliberate fraud upon the Courts of New Hampshire in collusion and conspiracy with the defendants. I guess my question to you, sir, is--let me try and break it down this way. Do you have any documents which support your claim that Jack Crisp perpetrated a deliberate fraud upon the Courts of New Hampshire in collusion and conspiracy with the defendants? In other words, can you point to any documentation either in your file or that you have knowledge of that supports that allegation?

8 A. N o . Q. Can you describe any conversation that you are aware of that would support that allegation specifically? A. No, only the pattern, only the pattern.

MacFarlane Deposition at 14-16. Plaintiff alleges that further

support for these claims can be inferred "from the totality of

the record in this case, including the [Pre-Nuptial Agreement]

and the oral argument transcript submitted herewith, together

with the 'pattern' testimony of Plaintiff, the Court record,

trial and appellate, from New Hampshire, and the attorney and

client files in this matter . . . ." Plaintiff's Supplementary

Objection at 5.

To be sure, the recitation of "evidence" hereinabove

described is not what the court would describe as either

"weighty" or "conclusive". However, with due regard for the

plaintiff's pro se status, as well as an acknowledgement that the

"proof" in claims alleging fraud are usually within the exclusive

control of those against whom such claims are made, the court

finds that the interests of justice would be ill-served by brevis

disposition of plaintiff's complaint.5

5Indeed, the Circuit has stood fast by the principle that "actions should ordinarily be resolved on their merits." Coon v. Grenier, 867 F.2d 73, 76 (1st Cir. 1989) (citations omitted); accord Richmond v. General Motors Corp., 437 F.2d 196 (1st Cir. 1971) (same). Accordingly, defendant's motion for summary judgment as to

the intentional fraud/misconduct claims (Counts VI-VIII) must be

and herewith is denied.

3. Plaintiff's Disclosure of Experts

The original discovery schedule in this matter contemplated

disclosure of experts by December 7, 1994. Based on plaintiff's

failure to designate an expert, defendants moved for summary

judgment. As part of his objection thereto, plaintiff sought,

and this court granted, leave to locate an expert in the field of

legal malpractice. In accordance therewith, plaintiff was to

file the opinion of his expert with the court by the close of

business on August 14, 1995. This deadline was further extended

to September 5, 1995.

a. Roberta A. Harding, Esg.

On August 14, 1995, plaintiff filed with the court the

opinion of his expert. Attorney Roberta A. Harding. Recognizing

that defendants did not receive same until August 16, 1995,

Defendants' Response to Plaintiff's Further Supplementary

Objection 5 3, the court nonetheless finds and rules that

plaintiff's disclosure of his expert witness was timely and in

compliance with the court's directives.

10 The court likewise finds no fault in plaintiff's

September 15, 1995, Supplementation of Attorney Harding's Report.

See Local Rule 26.1(b) ("Parties shall make disclosures mandated

by Fed. R. Civ. P. 26( a ) (2) when ordered by the court or, if the

court has not established the time for disclosure, at the time

set by Rule 2 6 (a)(3)."). Specifically, Rule 2 6 (a)(2)(C), Fed. R.

Civ. P., directs, "The parties shall supplement . . . [expert

testimony] disclosures when required under subdivision (e)(I)."6

Since Rule 26( a ) (3) states "these disclosures shall be made at

least 30 days before trial," plaintiff's supplementation of

previously disclosed expert testimony was neither erroneous nor

untimely.

b. Philip Cobbin, Esq.

By way of Further Supplementary Objection filed with the

court on September 15, 1995, plaintiff disclosed the identity and

opinion of a second expert witness whom he intends to call at

Subdivision (e)(1) provides, in relevant part.

With respect to testimony of an expert from whom a report is required under subdivision (a)(2)(B) the duty extends both to information contained in the report and to information provided through a deposition of the expert, and any additions or other changes to this information shall be disclosed by the time the party's disclosures under Rule 26( a ) (3) are due.

11 trial. However, the discovery schedule in this matter, after

much extension and delay, closed on September 5, 1995, some ten

days before plaintiff's submission. Accordingly, the court finds

and rules that plaintiff is herewith barred from introducing

Attorney Cobbin's opinion and testimony in accordance therewith

at trial.7

4. Defendants' Request for Further Discovery

In response to plaintiff's ultimate disclosure of an expert

witness, "the defendant asks for an opportunity to conduct full

discovery concerning the plaintiff's experts, including

depositions of plaintiff's expert(s) and in addition, to the

extent deemed necessary by the defendant, to prepare its case an

opportunity to redepose the plaintiff." Defendants' Response to

Plaintiff's Further Supplementary Objection 5 10. Such a reguest

strikes the court as appropriate and warranted.

71he court notes repeated references in plaintiff's objection papers to a claimed reservation of right "to retain additional, supplementary expert witnesses . . . " Plaintiff's Supplementary Objection at 1; Plaintiff's Further Supplementary Objection at 2. In accordance with the rulings made herein, the only expert plaintiff shall be entitled to call at trial is Attorney Roberta A. Harding. All other experts are barred due to untimely disclosure.

12 Trial on this matter has been calendared to commence

April 16 , 1996.8 Accordingly, the court further reopens and

extends discovery to March 1, 1996, for the sole purpose of

permitting defendants, after having reviewed Harding's report, to

depose Attorney Harding. Defendants are also permitted, within

the time frame here established, to redepose the plaintiff,

should such course of conduct be deemed necessary to their proper

preparation for trial on the merits. This renewed discovery

deadline will not, however, be subject to any further extension.9

Conclusion

For the reasons set forth herein, defendants' motion for

summary judgment (document 51) is denied as to all counts.

Plaintiff is entitled to present the expert testimony of Attorney

Harding, but not that of Attorney Cobbin. Defendants shall have

until March 1, 1996, to depose plaintiff's expert and, if

necessary, redepose plaintiff. In all events, this case will go

81he court notes, but defers comment upon, defendants' recently-filed notice of a potential scheduling conflict.

9Subseguent to the filing of their response, defendants filed a motion for clarification (document 64) of the court's trial notice, which indicated that discovery in this matter was closed. Said motion is herewith granted, subject to the terms and conditions ordered herein.

13 forward to trial as scheduled, currently calendared to commence

April 16, 1996.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

January 16, 1996

cc: James MacFarlane, pro se Jeffrey H. Karlin, Esq.